I write to
express the American Bar Association’s (ABA) concerns about the violations of
international law that are ongoing in Belarus as it relates to the independence
of the legal profession. The ABA
is an independent, voluntary, non-governmental organization with nearly 400,000
judges, lawyers, and associate members worldwide. The ABA regards
human rights and the rule of law as cornerstones of a free and just society and
has committed to strengthening them in the United States and around the world.

We know
that you have been following the developments in the Republic of Belarus
very closely. I am concerned that the rule of law cannot be restored in Belarus without
addressing ongoing threats to the independence of the legal profession. The ABA respectfully
requests that you consider additional means to raise the profile of this issue in
your relations with the government of Belarus.

A. The situation of the Bar and lawyers in Belarus

As you
know, the government of Belarus
has punished many lawyers who have represented political opponents and human
rights activists. The government has also taken steps to dismantle the Minsk
Bar Association (“Bar”) in order to undermine its independence from the
government. These actions by the government of Belarus are clear violations of
international law, infringements on human rights, and breaches of fundamental
principles of the legal profession.

We are
aware of six (6) lawyers who have either had their licenses revoked by the

Ministry of
Justice (“Ministry”) and/or been disbarred by the Bar as a result of pressure from
the government. While the Ministry alleges that their punishments were due to “professional”
or “ethical” failings, these lawyers appear to have been the subject of retaliation
for representing political candidates who were detained after the December

2012
election violence, or advocating for the respect of human rights through their
work.

In addition
to targeting individual lawyers, the government of Belarus has taken legislative and
administrative action to replace the Bar’s leadership and bring the Bar under
the government’s direct control. When the government directed the Bar to disbar
particular lawyers who were representing political opponents and human rights
activists under the pretense of professional violations, the Bar refused. In
response, the government increased the political pressure on the Bar, targeted
the Bar’s leadership, and took steps to refashion the Bar in its favor.

These
governmental actions resulted in the revocation of the licenses of three
leaders of the Bar and the disbarment of other lawyers. Additionally, the
government passed rules restricting the movement of lawyers internationally and
rules that gave the government unfettered power to set up extraordinary
commissions to evaluate the overall performance of the Belarusian legal
profession. The government has also arrogated the power to initiate disciplinary
proceedings against specific lawyers and expanded the grounds that can justify
disciplinary action. Finally, the government gave itself the power to rewrite the
Bar’s ethics rules, which it is currently doing at this time.

B. ABA
Concerns

These
actions by the government of Belarus
against the Bar and individual lawyers have raised serious concerns among ABA members and its
leadership. Not only is there a concern that lawyers and the legal profession
are under attack, but that the government of

Belarus’ actions will enable other human
rights and international law violations in Belarus to continue and to
increase.

At the core
of our concerns is that Belarus
is violating international law and not adhering to its treaty obligations. The
government’s retaliation against these lawyers and interference with the
administration of the Bar contravenes fundamental human rights enshrined in the
International Covenant on Civil and Political Rights, to which Belarus is a
State Party. Namely, these actions
violate the right to freedom of expression, freedom of association and the
right to counsel.

Belarus’ has violated Article 14 of the
ICCPR which protects the right to counsel. By punishing these lawyers and the
Bar for simply representing political opponents and human rights defenders, the
government has violated these individuals’ right to counsel of their own
“choosing” and created a chilling effect on the Belarusian legal profession’s ability
to provide other like-minded individuals with the right to counsel.

The
government of Belarus
has also violated the right to freedom of expression by retaliating against
attorneys speaking on behalf of their clients without justification. It has also violated the right of these
lawyers to associate with colleagues and clients without undue
interference.

These
developments are also in clear breach of the core principles of the legal
profession, namely the principle of independent regulation of the practice of
law recognized in Europe, the United
States, and internationally. Independent
regulation is the cornerstone of any democratic society based on the rule of
law; it is also necessary for the sound administration of justice. The Basic
Principles on the Role of Lawyers adopted by the

Eighth
United Nations Congress on the Prevention of Crime and the Treatment of

Offenders,
in Havana in
1990, provide that “[l]awyers like other citizens are entitled to freedom of
expression, belief, association and assembly (Principle 23). Furthermore, the

Basic
Principles continue by stating that:

Lawyers
shall be entitled to form and join self-governing professional associations to
represent their interests, promote their continuing education and training and
protect their professional integrity. The executive body of the professional
associations shall be elected by its members and shall exercise its functions
without external interference. (Point 24)

Moreover,
the Basic Principles state that:

Governments
shall ensure that lawyers (a) are able to perform all of their professional
functions without intimidation, hindrance, harassment or improper interference;
(b) are able to travel and to consult with their clients freely both within
their own country and abroad; and (c) shall not suffer, or be threatened with,
prosecution or administrative, economic or other sanctions for any action taken
in accordance with recognized professional duties, standards and ethics.

(Point
16)

The
Standards for the Independence
of the Legal Profession, as adopted by the

International
Bar Association, echoes the Basic Principles when it states that:

“There
shall be established in each jurisdiction one or more independent self-governing
associations of lawyers recognised in law, whose council or other executive
body shall be freely elected by all the members without interference of any
kind by any other body or person.”

The
principle of independence is also laid down in the Recommendation of the
Council of Europe (Recommendation No. R(2000)21 of the Committee of Ministers
to member States on the freedom of exercise of the profession of lawyer). We
realize that Belarus
is not a member of the Council of Europe; however, this recommendation reflects
important

European
standards for the legal profession:

“All
necessary measures should be taken to respect, protect and promote the freedom
of exercise of the profession of lawyer without discrimination and without
improper interference from the authorities or the public, in particular in the
light of the relevant provisions of the European Convention on Human Rights.”
(Principle I, point 1)

“Bar
associations or other professional lawyers’ associations should be self-governing
bodies, independent of the authorities and the public.” (Principle 5, point 2)

The
recommendation also highlights the role of the Bar:

“Bar
associations or other lawyers’ professional associations should draw up professional
standards and codes of conduct and should ensure that, in defending the
legitimate rights and interests of their clients, lawyers have a duty to act independently,
diligently and fairly.” (Principle III, point 1)

“The role
of Bar associations or other lawyers’ professional associations in protecting
their members and in defending their independence against any improper
restrictions or infringements should be respected.” (Principle V, point

3)

The ABA along with bar associations around the world adopted
the “Statement of Core Principles” of the legal profession, which was
formulated during the 2005 Bar Associations’ Presidents Meeting in Paris, France.
The core principles numbered three, one of which was the requirement of “[a]n
independent legal profession”.

In light of
international and regional standards on the independence of the legal profession
as well as the lawyers’ unequivocal freedom of association, it is no surprise that
the Special Rapporteur on the Independence of Judges and Lawyers, in his report
to the U.N. General Assembly, found that, “the foundation of an independent and
self-regulated association is one of the most significant steps in a period of
political transition.”

C. Conclusion

In bringing
these concerns to your attention, we are lending our support to, and pledging our
future assistance with, any efforts that you undertake to remedy the plight of
the Belarusian legal profession. To this end, we respectfully request that you
investigate this matter, and take action as deemed appropriate.

Sincerely,

Wm. T.
(Bill) Robinson III

cc: Nils Muiznieks, Council of Europe
Commissioner for Human Rights

Thorbjшrn Jagland, Secretary General of the
Council of Europe

Hillary
Rodham Clinton, U.S. Secretary of State

Michael Posner, U.S. Assistant Secretary of State
of Democracy, Human Rights, and Labor